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Exhibit 10.26
Execution Copy
PHASE 2 TECHNICAL ASSISTANCE AGREEMENT
This Technical Assistance Agreement, including the attachments hereto
(this "Agreement"), dated as of January 1, 1998 is made by and between TEXAS
INSTRUMENTS INCORPORATED, a Delaware, U.S.A. corporation, with its principal
place of business at 00000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxxx, Xxxxx 00000, X.X.X.
("TI"), and ANAM INDUSTRIAL CO., LTD., a corporation of the Republic of Korea,
with its principal place of business at Seoul, Republic of Korea ("Anam"). TI
and Anam are hereinafter referred to individually by their respective names or
as Party and collectively as Parties.
RECITALS
WHEREAS, TI, a global merchant-market semiconductor company, owns or
possesses certain rights, title and interests in and to valuable Advanced
Available Technology, Associated Technical Information, Trade and Industrial
Secrets and other Technical Information, which relate to the manufacture of the
Products (each term as hereinafter defined);
WHEREAS, Anam desires to obtain from TI certain Technical Assistance (as
hereinafter defined) with respect to the manufacture of Products;
WHEREAS, TI is willing to provide to Anam certain Technical Assistance
using Advanced Available Technology and Future Technology Nodes on the terms and
conditions set forth below;
WHEREAS, TI desires to obtain a reliable, competitive, long-term source
of TI Products (as hereinafter defined);
WHEREAS, Anam has made a considerable investment to construct and
operate its Facility based in significant part on the expectation that it will
receive the Technical Assistance using Advanced Available Technology and Future
Technology Nodes from TI so as to establish Anam as a leading supplier of
advanced foundry services, directly and through Amkor Electronics Inc. ("Amkor")
and their Affiliates;
WHEREAS, TI has made a significant investment in the research and
development of technology and has agreed to the transfer of technology based in
significant part on the expectation that Anam will maintain the confidentiality
of TI's Technical Information, Associated Technical Information and Technical
Data provided hereunder and on the expectation that Anam and Amkor can provide a
reliable, competitive, long-term source of TI Products.
WHEREAS, TI and Anam desire to establish a long-term, strategic
relationship to accomplish the above stated objectives;
WHEREAS, TI and Anam entered into a Technical Assistance Agreement
having an effective date of January 28, 1997 for Phase 1 of the Facility, as
defined herein (the "Phase 1 TAA); and
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WHEREAS, Anam contemplates equipping Phase 2 of the Facility, as defined
herein, in a manner compatible with TI's C07 process technology, and in such a
manner as to meet the needs of the merchant foundry market, provided the Parties
enter into this Agreement providing for, among other things, TI's transfer of
such technology;
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants contained herein, the Parties, intending to be legally bound, hereby
agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, the following words, terms and phrases
shall have the meanings assigned to them in this Article 1 unless specifically
otherwise stated. Furthermore, any defined term herein shall have a constant
meaning regardless of whether it is used in its singular or plural form.
1.01 ADVANCED AVAILABLE TECHNOLOGY.
1.01.01 Advanced Available Technology shall consist of such CMOS
logic process, Technical Information and Technical Data of TI which is within
the technology set referred to within TI as "18C07, technology and which TI
either has used or uses in commercial production of logic semiconductor devices
or, following completion of TI's then-current productization process, considers
usable in commercial production of TI Products and which TI may disclose or
convey to Anam; Advanced Available Technology shall also include improvements
and derivatives of the 18C07 core process, related split gate processes and
future transistor improvements; provided, however, Advanced Available Technology
shall not include, inter alia any DRAM, Flash, EPROM, and other merged
technologies.
1.01.02 Advanced Available Technology shall not include any
Technical Information relating to any product, device, apparatus, equipment,
system, mask, computer program, hardware, or software other than that which
directly relates to wafer fabrication and wafer test of TI Products.
1.02 AFFILIATE.
1.02.01 Any individual, corporation, partnership, joint venture,
trust, unincorporated organization, or other business enterprise which, directly
or indirectly, controls or is controlled by, or is under common control a Party,
but only so long as such relationship is maintained. Notwithstanding the
foregoing, Anam and Amkor and their respective Affiliates shall be deemed
Affiliates for the purposes of this Agreement.
1.02.02 For purposes of Articles 2, 3 and Section 10.01.01 only
of this Agreement, Texas Instruments - Acer Incorporated, KTI Semiconductor
Limited, and TECH Semiconductor Singapore Pte. Ltd. each shall be deemed to be
an Affiliate of TI only to the extent that (i) TI in its sole discretion elects
to utilize any of those companies to carry out any of TI's duties under Articles
2, 3 and Section 10.01.01, or selects any of those companies to receive
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any of the rights of an Affiliate, and (ii) each abides by the confidentiality
provisions of Article 10. TI shall have the right to amend this list of
Affiliates, provided such entities satisfy the requirements of Section 1.02.01,
from time to time upon notice to Anam.
1.03 ASSOCIATED TECHNICAL INFORMATION. Information of TI, other than
Technical Information, relating to 25C10 and 18C07 CMOS logic processes,
associated with TI Products and comparable products manufactured at TI, which
processes are no longer on an active TI product or process roadmap and the
development of which TI has discontinued.
1.04 CAPACITY. As defined in the Manufacturing and Purchase Agreement.
1.05 COPYRIGHTS. Rights under the U.S. copyright laws, as amended from
time to time, and under any similar laws in countries other than the U.S.
1.06 EFFECTIVE DATE. The later of the date of execution by each Party
and the date on which is received all government approvals necessary for the
performance of this Agreement.
1.07 FACILITY.
1.07.01 The completed wafer fabrication plant known as Anam
Fabrication Buchon (AFB) 1, located at 000, Xxxxxx-xxxx, Xxxxx-xx, Xxxxxx,
Xxxxxxx-xx, Xxxxx 420-130, which Anam constructed in Buchon, Republic of Korea,
in connection with the Phase 1 TAA, which Facility includes only a single 60
meter by 100 meter clean room.
1.07.02 The term Facility includes a wafer fabrication facility
and equipment only, and shall not include facilities or equipment for assembly
and testing of assembled Products.
1.08 FUTURE TECHNOLOGY NODES. Advanced Available Technology of TI's next
node (anticipated to be 0.18 micron, 15C05) of CMOS logic processes or
comparable processes that TI may develop and intends to qualify for TI's own
use.
1.09 KOREAN LAWS. The laws, regulations, decrees and rules of the
Republic of Korea.
1.10 MANUFACTURING AND PURCHASE AGREEMENT (MPA). The Manufacturing and
Purchase Agreement of even date herewith between TI, Amkor and Anam.
1.11 MASKWORK RIGHTS. Rights under the U.S. Semiconductor Chip
Protection Act of 1984, as amended from time to time, and under any similar laws
in countries other than the U.S.
1.12 NON-TI PRODUCTS. Semiconductor wafers manufactured using 18C07 CMOS
Advanced Available Technology, intended for sale and shipment to parties other
than TI or its Affiliates.
1.13 PATENTS. (i) Patents, utility models and design patents under the
laws of any country, (ii) any applications for patents, utility models and
design patents that, when issued, will be comprehended by the foregoing, and
(iii) any amendments, renewals or extensions of any of the foregoing.
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1.14 PHASE 1. That portion of the clean room within the Facility, the
process capability of which, as currently contemplated by the Parties, is
sufficient to manufacture approximately 15,000 wafer starts per month under the
provisions of the Phase 1 TAA.
1.15 PHASE 2. That portion of the clean room within the Facility, the
process capability of which, as currently contemplated by the Parties, is
sufficient to manufacture approximately 10,000 wafer starts per month under the
provisions of this Agreement.
1.16 PRODUCTS. TI Products and Non-TI Products.
1.17 PRODUCT QUALIFICATION. TI's written certification that TI Products
and their manufacture have achieved a level of quality, consistency and
reliability that meets or exceeds the Specifications in accordance with this
Agreement.
1.18 RELATED FACILITY. As defined in Section 10.03 below.
1.19 SPECIFICATIONS. Such specifications relating to specific process
flows which are supplied to Anam in writing by TI to describe, characterize,
circumscribe and define the design characteristics, quality and performance of
TI Products, manufacturing processes, manufacturing equipment or Product
Qualification and which are consistent with specifications which are applicable
to the same process flows used in a TI facility comparable to the Facility.
1.20 SUBSIDIARY. Any corporation, other juridical enterprise,
partnership or other business enterprise the majority of the voting shares of
which is owned by a Party.
1.21 TECHNICAL ASSISTANCE. With respect to TI's performance of this
Agreement, any and all consultation, advice, training or meetings relative to
providing any Technical Information, Associated Technical Information or
Technical Data.
1.22 TECHNICAL DATA. Any Technical Information embodied in or set forth
on any tangible medium and including, without limitation, reports, memoranda,
plans, prints, Specifications, material lists, machine drawings, software and
instructions (whether in human or machine readable form).
1.23 TECHNICAL INFORMATION. Any information of TI which relates
specifically to the manufacture, fabrication, and testing of TI Products and
which is owned, developed, discovered or otherwise acquired by TI at any time
prior to the expiration or termination of the Term of this Agreement.
1.24 TERM. The period during which this Agreement is in effect, as more
specifically set forth in Article 15 of this Agreement.
1.25 TI COPYRIGHTS. All rights of TI under Copyrights, which rights are
or were acquired by TI at any time prior to the expiration or termination -of
this Agreement.
1.26 TI JOINT VENTURE. Any corporation, other juridical entity,
partnership or other business enterprise, other than a Subsidiary, of which TI
controls a minimum of ten percent (10%) of the voting rights with respect to the
election of directors.
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1.27 TI MASKWORK RIGHTS. All rights of TI under Maskwork Rights, which
rights are or were acquired by TI at any time prior to the expiration or
termination of this Agreement.
1.28 TI PATENTS. All rights of TI under Patents, which rights are or
were acquired at any time prior to the expiration or termination of this
Agreement.
1.29 TI PRODUCTS. 18C07 CMOS logic semiconductor wafers manufactured by
Anam using Advanced Available Technology intended for sale and shipment to TI
based upon TI's design specifications in accordance with this Agreement and the
MPA.
1.30 TRADE AND INDUSTRIAL SECRETS. Information including Technical
Information and Associated Technical Information which (i) is treated as secret
and confidential by a Party hereunder, and (ii) can be disclosed by a Party (the
"Disclosing Party") to the other (the "Receiving Party") without violating
obligations to third parties. The term Trade and Industrial Secrets includes,
but is not limited to, any and all information supplied by TI under a certain
nondisclosure agreement executed by TI and Anam and all future nondisclosure
agreements of TI and Anam which are entered into pursuant to this Agreement or
amendments to such nondisclosure agreements (hereinafter collectively "NDA").
ARTICLE 2
DELIVERY OF TI TECHNICAL INFORMATION AND ASSOCIATED TECHNICAL INFORMATION
2.01 GENERAL OBLIGATION TO PROVIDE TECHNICAL INFORMATION.
2.01.01 TI shall, from time-to-time during the Term, furnish to
Anam, in the manner provided in Articles 2, 3, and 4 hereof, Technical
Information, including Advanced Available Technology, which is reasonably
necessary to allow Anam to carry out the wafer fabrication and wafer test of TI
Products in Phase 2.
2.01.02 Such Technical Information and Advanced Available
Technology shall consist of, to the extent applicable, all of the following:
(a) The TI Technical Information, Technical Data and such
other technical assistance deliverables identified in Schedule "1", which
schedule is attached hereto and incorporated herein by this reference.
(b) Preparation and interpretation of drawings,
blueprints, Specifications for materials, and Specifications for parts and
devices;
(c) Preparation of reports or reproducible data used for
conveying Technical Information or Advanced Available Technology,
(d) Planning and conducting training programs for
employees engaged in the engineering and production of the TI Products in Phase
2;
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(e) Assistance in obtaining such special tooling and
equipment as may be necessary;
(f) Inspection and testing of tools, molds and dies;
(g) Quality control of parts and materials offered by
suppliers of Anam;
(h) Providing equipment lists; and
(i) Any other assistance which may be reasonably required
to the manufacture of TI Products in Phase 2.
2.01.03 From time to time TI will provide Anam with its current
TI product or process roadmap associated with the TI Products and the 18C07
process hereunder. Upon Anam's reasonable request, following a meeting in
accordance with Section 16.06, TI shall deliver Associated Technical Information
in the possession of TI. Notwithstanding anything to the contrary contained
herein, TI shall be under no obligation to further develop or to assist Anam in
further development of such Associated Technical Information. Anam assumes all
risks associated with its use of any Associated Technical Information delivered
hereunder.
2.02 PERSON-MONTH COMMITMENt.
2.02.01 Notwithstanding anything to the contrary contained
herein, the total person-month commitment for all Technical Assistance under
this Agreement shall be, in the aggregate:
(a) 100 person months of TI personnel in Korea;
(b) 100 person months of Anam personnel to be trained by
TI.
2.02.02 After Product Qualification, in the event that Anam
should request Technical Assistance from TI additional to the person-month
commitment set forth in Section 2.02.01, TI shall provide such Technical
Assistance that is reasonable and for which TI has then-current capability to
perform, provided that the Parties mutually and reasonably agree to the terms
and conditions, including but not limited to scope, duration, number of
personnel and fees, under which such additional Technical Assistance may be
provided.
2.03 LIMITATION ON OBLIGATION TO DISCLOSE. Anything to the contrary in
this Agreement notwithstanding, TI shall neither be obligated nor required to
disclose to Anam any Technical Information, Advanced Available Technology,
Associated Technical Information or Technical Data with respect to which there
is imposed on TI legal or contractual obligations not to disclose to Anam or
which would trigger any obligation of TI to an unrelated third party; provided,
however, TI represents that (i) the Technical Information, Advanced Available
Technology and Technical Data TI furnishes to Anam under this Agreement is or
will be the same as used by TI in its own process of C07 products comparable to
TI Products and (ii) Anam may use such information in the manufacture of TI
Products.
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2.04 PROGRAM COORDINATOR. Each Party shall appoint, within thirty (30)
days of the Effective Date, a person who shall be responsible for the
implementation of this Agreement and who shall provide coordination of the
Parties under this Agreement (hereinafter the "Program Coordinator").
2.05 LIMITATION ON TI'S OBLIGATIONS. Notwithstanding anything to the
contrary contained herein, TI's affirmative obligations hereunder, including but
not limited to those under Articles 2, 3 and 4, shall relate solely to TI
Products, except with respect to Sections 2.01.03, 2.06 and 3.05.
2.06 STACKED VIAS. At no additional charge to Anam, TI shall provide
Anam with timely assistance and know-how for C07 stacked VIAS and metalization
for use in backfitting to TI's 25C10 node.
2.07 CONSIDERATION. The consideration for Technical Assistance to be
provided by TI to Anam under this Agreement includes but is not limited to the
mutual exchange of promises in this Agreement and the MPA, and the Technical
Assistance Fee expressly set forth in Annex A, Section II of this Agreement,
which Annex is incorporated herein by this reference.
ARTICLE 3
TECHNICAL ASSISTANCE OUTSIDE KOREA
3.01 VISITS TO PLANTS AND TRAINING OUTSIDE KOREA. When reasonably
required by Anam, TI shall arrange for a reasonable number of technical
personnel in the sole and exclusive permanent employ of Anam to visit, at TI's
reasonable discretion, plants and offices of TI or Affiliates of TI, so that
such technical personnel may observe and become familiar with the Technical
Information or Advanced Available Technology, and in particular with the
engineering and manufacturing methods and techniques used in such plants in
producing comparable products. Such visits will include training in the
utilization of the manufacturing equipment, tools and techniques being used in
the plants of TI or of Affiliates of TI. Upon reasonable request by Anam, TI
shall arrange for a reasonable number of personnel of Amkor or Amkor Affiliates
to visit, at TI's reasonable discretion, plants and offices of TI or Affiliates
of TI for the limited purpose of fulfilling Amkor's marketing and sales
obligations under the MPA and Amkor's marketing and sales function with respect
to Non-TI Products, and otherwise subject to Article 10 hereof.
3.02 MANNER OF ARRANGING TECHNICAL ASSISTANCE. The number of personnel
of Anam and Amkor or their Affiliates which may be sent to the plants and
offices of TI or of Affiliates of TI pursuant to Section 3.01 hereof and the
schedules, and the particular purposes of all such visits, shall be agreed upon
in advance in writing between TI and Anam from time-to-time.
3.03 EXECUTION OF SECRECY AGREEMENTS. Anything to the contrary in this
Article 3 notwithstanding, each and every personnel of Anam, Amkor or Affiliates
of either who shall be sent to the TI plants pursuant to Section 3.01 and
Section 3.02, shall execute a nondisclosure agreement as a condition precedent
to admission or access to such plant or receipt of technical
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training pursuant to Section 3.02 hereof. All such personnel shall fully abide
by all plant rules and regulations of TI or TI Affiliates. Anam shall be fully
liable for any personal injury losses or property damages incurred by TI or TI
Affiliates as a result of any act or omission of Anam personnel while on the
premises of TI or its Affiliates.
3.04 EXPENSES. Anam shall pay the expenses to cover the living and
business travel costs (TI Anam personnel visiting TI plants or offices for the
full period of their visit. TI agrees to use reasonable commercial efforts to
assist in minimizing any such expenses to Anam. Further, TI agrees to provide
reasonable office space, supplies, and secretarial support at no charge to Anam
during the period of stay.
3.05 CONSULTATION AND ADVICE BY CORRESPONDENCE. After the fulfillment of
Section 2.02.0i-and from time-to-time during the Term, TI will consult with and
advise Anam personnel concerning any difficulties encountered by Anam in the
operation of the Facility in the manufacture of Products; provided, however,
that such TI consultation and rendering of advice shall take place only by
correspondence or telephone between TI and Anam, except as otherwise agreed.
3.06 TECHNICAL ASSISTANCE IN TI FACILITIES. Should it prove uneconomical
for Anam to duplicate some of the facilities available to TI or Affiliates of TI
shall, from time-to-time during the Term, when reasonably agreed to by the
Parties, make available, or have made available, to Anam certain of the similar
facilities of TI to perform, or have performed, certain testing and analysis of
the TI Products manufactured by Anam, for the purpose of advising Anam as to the
suitability of available raw materials and of means of improving TI Products.
Such facilities may include TI laboratories and pilot plants which are engaged
in the same or similar activities. Anam shall reimburse TI for all of the costs
and expenses incurred by TI as a result of such testing, analysis and use of TI
facilities.
3.07 PROVISO. Nothing in this Article 3 shall be construed to obligate
Anam to assign to the temporary or permanent employ of TI any personnel of Anam.
Arrangements for any such temporary or permanent assignments shall be separately
made between Anam and TI on a case-by-case basis.
ARTICLE 4
TECHNICAL ASSISTANCE IN KOREA
4.01 TECHNICAL ASSISTANCE DURING THE TERM. With respect to Technical
Information, from time-to-time during the Term, Anam may request TI to make
available to Anam the services of TI personnel for reasonable periods of time
and at mutually prearranged dates, to perform certain specific tasks and furnish
specific advice and guidance. TI and Anam shall determine, by mutual agreement
in each such case, the number, time of dispatch and duration of stay in Korea of
any such personnel or other qualified personnel of TI to be made available to
Anam in Korea pursuant to this Section 4.01.
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4.02 TRAVEL EXPENSES. TI shall provide directly to each TI personnel who
shall be made available to Anam pursuant to the provisions of Section 4.01
hereof, prepaid, round-trip transportation from their place of normal employment
to the Facility in Korea.
4.03 LIVING EXPENSES. TI shall pay to each of its personnel who shall be
made available to Anam pursuant to the provisions of Section 4.01 hereof, sums
sufficient to cover the living and business travel expenses of each such
personnel for the period of absence from the usual place of employment; provided
however, Anam agrees to use reasonable commercial efforts to assist in
minimizing any such expenses. Further, Anam agrees to provide reasonable office
space, supplies and secretarial support at no charge to TI.
4.04 PROVISO. Nothing in this Article 4 shall be construed to obligate
TI to assign to the temporary or permanent employ of Anam any personnel of TI.
Arrangements for any such temporary or permanent assignments shall be separately
made between Anam and TI on a case-by-case basis. Nothing in this Article 4
shall be construed to obligate TI to continue to make available for an
uninterrupted period of more than one hundred seventy (170) days the services of
any one person to Anam in Korea.
4.05 EXECUTION OF SECRECY AGREEMENTS. Anything to the contrary in this
Article 4 notwithstanding, each and every personnel of TI who shall be sent to
the Anam plants or offices pursuant to Section 4.01 shall execute a
nondisclosure agreement as a condition precedent to admission or access to such
plant. All of such personnel shall fully abide by all of the plant rules and
regulations of Anam. TI shall be fully liable for any personal injury losses or
property damages incurred by Anam, Amkor or their Affiliates as a result of any
act or omission of TI personnel while on the premises of Anam or Amkor.
ARTICLE 5
INTELLECTUAL PROPERTY RIGHTS
5.01 GRANT OF RIGHTS RELATING TO TI PRODUCTS.
5.01.01 RIGHT TO USE TI PATENTS, MASKWORK RIGHTS AND COPYRIGHTS
FOR TI PRODUCTS. For the term of this Agreement, TI hereby grants and agrees to
grant to Anam nonexclusive rights, under TI Patents, TI Maskwork Rights and TI
Copyrights, to make TI Products in the Facility or in any Related Facility (as
defined in Section 10.03 below) for sale exclusively to TI or a TI Affiliate.
5.01.02 RIGHT TO USE THIRD PARTY PATENTS, MASKWORK RIGHTS AND
COPYRIGHTS FOR TI PRODUCTS. As the present and potential licensee under
agreements with third parties, for the term of this Agreement, TI hereby grants
and agrees to grant to Anam, to the extent that any such agreement permits TI to
do so, a nonexclusive right, under the Patents, Maskwork Rights and Copyrights
of such third parties, to make TI Products in the Facility or in any Related
Facility for sale exclusively to TI or a TI Affiliate; provided, however, that
the grant of rights under this Section 5.01.02 shall be subject to the
provisions of the licenses under which TI has the right to grant such rights.
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5.01.03 RIGHT TO USE TRADE SECRET RIGHTS FOR TI PRODUCTS. TI
hereby grants and agrees to grant to Anam, insofar as TI has the right to do so,
nonexclusive rights to use Trade and Industrial Secrets, Advanced Available
Technology and Technical Information that TI may now or hereafter own or possess
for or in connection with the manufacture in the Facility or in any Related
Facility of TI Products for sale exclusively to TI or a TI Affiliate.
5.02 GRANT OF RIGHTS RELATING TO NON-TI PRODUCTS.
[Pursuant to Section 14.04 hereof the parties to this agreement have not
consented to disclosure of the omitted material.]
5.03 ROYALTY.
5.03.01 In consideration of the rights granted under Section
5.02.01 above, Anam agrees to pay TI a royalty equal to a percentage of the
gross revenues received (net of shipping and handling and insurance) on all
Non-TI Products sold by Anam or Amkor or any Anam Affiliate to unrelated third
parties, such percentage to be: [ * ]
5.03.02 Anam shall pay all amounts owed under Section 5.03.01
above for each calendar quarter within 30 days of the end of such quarter. All
payments shall be in U.S. Dollars.
5.03.03 In consideration of the rights granted to Anam under
Section 5.02.04 above, Anam's obligation to pay the foregoing royalty shall
continue after the expiration or termination of this Agreement for so long as
the Parties' rights and obligations under Section 5.02 above survive.
* Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
ARTICLE 6
USE OF NON-TI TECHNOLOGY
6.01 USE OF NON-TI TECHNOLOGY. Except as otherwise expressly provided
for in this Article 6, Anam may not use any proprietary process technology or
know-how directly in the manufacture of Products other than Technical
Information or Associated Technical Information delivered hereunder by TI.
6.02 TECHNOLOGY DEVELOPED BY ANAM.
(a) Anam may not use any technology conceived or developed by
Anam in the manufacture of Products, unless:
(i) With respect to the manufacture of TI Products, Anam
has obtained the prior written consent of TI; and
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(ii) With respect to Non-TI Products, either (A) Anam has
obtained the prior written consent of TI or (B) Anam's use thereof would not (1)
impact the quality and/or Specifications of TI Products or (2) require TI to
provide to Anam any assistance not contemplated by this Agreement;
(b) If Anam or Amkor receives a written notice of an alleged
infringement from a third party relating to Non-TI Products, and after
reasonable investigation, Anam concludes in its reasonable business judgment to
change its process technology in light of such notice, and notwithstanding TI's
position in respect of such infringement claim, Anam may make such necessary
changes to its process for manufacturing Non-TI Products to such extent as may
be required in Anam/Amkor's reasonable judgment to avoid the alleged
infringement; provided, however, that any action taken by Anam in this regard is
entirely at its own choice and shall not be construed as any acquiescence or
admission on TI's part as to such alleged infringement and neither shall such
action be construed as an admission on Anam's or Amkor's part as to such alleged
infringement.
(c) In the event, and to the extent that, Anam develops or
creates any process or manufacturing technology derived from the TI Technical
Information or Associated Technical Information provided to Anam hereunder, to
the extent it is permitted to do, so, Anam hereby grants and agrees to grant to
TI, under any Anam intellectual property rights, except with respect to any
Patents that Anam may acquire, a royalty-free, worldwide, perpetual,
sublicensable license to use such technology to make, have made, sell and import
TI semiconductor devices. With respect to any such Patents, Anam hereby grants
and agrees to grant to TI a royalty-free, worldwide, perpetual,
non-sublicensable license to use such patents to make, have made, sell and
import TI semiconductor devices. Nothing set forth herein shall in any way limit
Anam's rights to (including the rights to practice and license) any technology,
or any rights in any technology, developed or acquired independently by Anam.
(d) Anam shall disclose the technology referred to in 6.02(c) in
accordance with Section 16.06.
(e) So as to avoid unauthorized disclosure of TI technology, Anam
shall not file any patent application where such filing would require the
disclosure of any TI trade secrets.
(f) TI or Anam may propose from time to time that Anam or TI
employees participate in joint development teams. Such participation shall be
considered on a case-by-case basis and shall be subject to the execution of a
separate written agreement.
(g) In no event shall the royalty owed TI under Section 5.03(a)
above be reduced or otherwise affected by any use by Anam of technology
conceived or developed by Anam in the manufacture of Products.
6.03 TECHNOLOGY DEVELOPED BY THIRD PARTIES.
(a) In no case shall Anam use proprietary process technology or
know-how developed by third parties in any respect for the manufacture of
Products without the prior written consent of TI, which consent shall not
unreasonably be withheld or delayed. Anam recognizes that TI's consideration of
any such proposal shall take into account the possibility of contaminating TI
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technology resident at the Facility with such third party technology, the impact
on Anam's manufacture of TI Products and other relevant factors.
(b) In no event shall the royalty owed TI under Section 5.03(a)
above be reduced or otherwise affected by any use by Anam of technology
conceived or developed by a third party in the manufacture of Products.
ARTICLE 7 TRADEMARKS
7.01 NO USE OF TI TRADEMARKS. Except as provided in Section 7.02,
neither Anam nor any of its third party customers shall, at any time, in any
place or in any manner, utilize the trademarks of TI, or its Affiliates or any
name, xxxx, device or logo confusingly similar thereto, in connection with Anam,
the business activities of Anam or the manufacture, use, lease, sale or other
disposition of Non-TI Products in any other way.
7.02 LIMITED TRADEMARK USE. Only with respect to TI Products and, then,
only to the extent authorized in writing by TI, Anam may symbolize or otherwise
xxxx such TI Products with TI trademarks, trade names, devices or other TI
proprietary logos. Except as authorized pursuant to this Section 7.02, the
provisions of Section 7.01 shall govern.
ARTICLE 8
DISCLAIMERS AND LIMITATIONS OF LIABILITY
8.01 INDEMNITY BY ANAM. Anam shall defend any suit or proceeding brought
against TI insofar as such suit or proceeding is based upon a claim (i) that
Non-TI Products manufactured by Anam, or any process carried out on Non-TI
Products or any process used in the manufacture of Non-TI Products, constitutes
direct infringement of any duly issued Patent, or any Maskwork Right, Copyright
or trade secret, unless and to the extent that said infringement (excluding
Patent or Maskwork Right infringement) resulted from Anam's implementation or
utilization of Advanced Available Technology or Technical Information provided
by TI to Anam hereunder, or (ii) that TI Products manufactured by Anam or any
process carried out by TI Products or any process used in the manufacture of TI
Products constitutes direct infringement of any duly issued Patent or any
Maskwork Right, Copyright or trade secret where such infringement results from
Anam's implementation or utilization of technology other than Advanced Available
Technology or Technical Information provided by TI hereunder, or (iii) that the
transfer, disclosure or licensing to TI of Anam technology as contemplated by
this Agreement, or the entering into by Anam of this Agreement or any of the
agreements contemplated by this Agreement, constitutes a breach of any contract,
obligation or law to which Anam is bound, and Anam shall pay all damages and
costs finally awarded therein against TI, provided however, Anam will not be
obligated to indemnify and hold TI harmless against any claim unless Anam is
promptly informed of each communication notice or other action relating to such
claim and is given authority, information and assistance necessary to defend or
settle said suit or proceeding.
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8.02 INDEMNITY BY TI. TI shall defend any suit or proceeding brought
against Anam or Amkor insofar as such suit or proceeding is based upon a claim
that (i) TI Products manufactured by Anam, or any process supplied by TI and as
practiced by Anam in the manufacture of TI Products, constitutes direct
infringement of any duly issued Patent, or any Maskwork Right, Copyright or
trade secret, or (ii) the transfer, disclosure or licensing to Anam of the TI
technology as contemplated by this Agreement, or the entering into by TI of this
Agreement or any of the agreements contemplated by this Agreement, constitutes a
breach of any contract, obligation or law to which TI is bound, and TI shall pay
all damages and costs finally awarded therein against Anam or Amkor, provided,
however, that TI is promptly informed of each communication notice or other
action relating to the alleged infringement and is given authority, information
and assistance necessary to defend or settle said suit or proceeding, and
provided further that TI will not be obligated to indemnify and hold Anam and
Amkor harmless to the extent that such liability results from either (i) Anam's
implementation or utilization of technology other than Advanced Available
Technology or Technical Information provided by TI to Anam hereunder; (ii) or
Anam's breach of this Agreement.
8.03 HOLD HARMLESS. Except with respect to the subject matter of the
indemnities in Article 8.01 and the MPA, Anam will hold TI harmless from and
indemnify it against all claims made by third parties, including but not limited
to vendors, contractors and customers of Anam, arising out of the operations of
Anam, the manufacture and sale of Non-TI Products by Anam and the acts or
omissions of Anam's personnel (whether or not such personnel are direct
employees of Anam or have been obtained from TI on a seconding or contractual
basis), whether such claims are based in contract, tort or otherwise.
8.04 LIMITATION OF LIABILITY.
(a) EXCEPT FOR WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT
AND THE MANUFACTURING AND PURCHASE AGREEMENT, TI AND ANAM DISCLAIM ALL
WARRANTIES, WHETHER EXPRESS, STATUTORY, OR IMPLIED, FOR ANY TECHNICAL
INFORMATION AND ASSOCIATED TECHNICAL INFORMATION PROVIDED TO EACH OTHER
HEREUNDER, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. TI AND ANAM EXPRESSLY DISCLAIM ANY
WARRANTY-THAT THE OTHER PARTY'S USE OF TECHNOLOGY WILL NOT INFRINGE ANY THIRD
PARTY'S INTELLECTUAL PROPERTY RIGHTS. NEITHER TI NOR ANAM AUTHORIZE ANY PERSON
TO ASSUME FOR EITHER OF THEM ANY OTHER LIABILITIES IN CONNECTION WITH THE
MANUFACTURE OR SALE OF THE PRODUCTS.
(b) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
HEREUNDER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT
LIABILITY, OR OTHERWISE.
(c) THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER
THE PARTY AGAINST WHOM LIABILITY IS ASSERTED HAS BEEN
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ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
(d) THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF
OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE AMOUNTS PAID BY
ANAM TO TI HEREUNDER.
8.05 NOTICE OF CLAIMS. Any provision herein to the contrary
notwithstanding, both Anam and TI shall promptly advise the other whenever it
shall become apprised of any claim which is of a nature comprehended by this
Article 8.
ARTICLE 9
EXPORT CONTROLS
9.01 Anam understands and acknowledges that technology (regardless of
the form in which it is provided), including software, received from TI under
this Agreement may be under validated export license control of the United
States or other countries. Anam agrees to comply with applicable export control
laws, and shall be responsible for obtaining all Anam's export, import and other
licenses related to export, re-export or import of Non-TI Products, software or
information by it. Anam specifically assures TI that without prior authorization
from the U.S. Department of Commerce, it shall not knowingly sell, transfer,
release, export or re-export, directly or indirectly, any technology (including
software) received from TI, or any direct product or such technology or any
Product, to any recipient, destination or country to which such export or
re-export is restricted or prohibited by U.S. law, including, but not limited to
the Democratic People's Republic of North Korea. The granting of all required
import and export licenses shall be a condition precedent to TI's obligations
under this Agreement. TI shall have no liability to Anam if any licenses or
approvals are denied.
9.02 Anam agrees to comply with applicable Korean export and import
control laws, and shall be responsible for obtaining all export, import and
other licenses related to import, export, re-export of Non-TI Products, software
or information by Anam, Amkor or any Affiliate.
9.03 TI shall comply with applicable U.S. and other export control laws,
and, except as provided for in the preceding sentence, TI shall be responsible
for obtaining all export and other licenses related to export of such technology
and all import and other licenses related to the import into any country of TI
Products by TI or its Affiliates, provided that such a license is required and
further provided that Anam and Amkor have taken all necessary actions for TI to
obtain such license and is in compliance with all U.S. export control laws.
9.04 Anam further agrees to obtain any necessary export license or other
documentation prior to exportation of any product or technical data, including
software, acquired from TI or any product of such technical data. Accordingly,
Anam shall not sell, transfer, release, export, re-export, divert or otherwise
dispose of any such product or technical data directly or indirectly to any
person, firm or entity, or country or countries, prohibited by United States or
non-U.S. laws or regulations. Further, Anam shall give notice of the need to
comply with such
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laws and regulations to any person, firm or entity which it has reason to
believe is obtaining any such technical data or product from Anam with the
intention of exportation. Each Party shall secure, at its sole expense, such
licenses and export and import documents as are necessary for each of them to
fulfill its obligations under the Agreement.
9.05 The terms of this Article 9 shall survive termination or expiration
of this Agreement.
ARTICLE 10
CONFIDENTIALITY
10.01 TI CONFIDENTIAL INFORMATION.
10.01.01 ANAM'S GENERAL OBLIGATION OF CONFIDENTIALITY AND
NONDISCLOSURE. Anam hereby recognizes that the value of the Technical
Information, Technical Data, Advanced Available Technology, Associated Technical
Information and Trade and Industrial Secrets and proprietary information of TI's
customers (collectively the "TI Confidential Information") is attributable
substantially to the fact that the said information, know-how and technologies
of TI are maintained by TI, its Affiliates and TI Joint Ventures in the
strictest confidentiality and secrecy and generally are unavailable to others in
Korea and elsewhere without the expenditure of substantial time, effort or
money.
Anam therefore covenants and agrees to keep strictly
secret and confidential the TI Confidential Information, whether disclosed by
TI, a TI Affiliate or TI Joint Venture, in accordance with the following
provisions of this Agreement. Anam agrees that the Confidential Information
which it receives pursuant to this Agreement is received only for use by Anam
and not by any Affiliate and only in the Facility and to the extent provided in
this Agreement. Notwithstanding the foregoing, Anam may disclose TI Confidential
Information to Amkor and certain of Anam's and Amkor's respective Affiliates,
but only to the extent permitted under Section 10.01.02.
Except as provided in Section 10.01.06 of this Agreement,
Anam agrees to keep the TI Confidential Information confidential until ten (10)
years after the expiration or termination of this Agreement; provided however
that TI Confidential Information in the form of source code for any software or
microcode will be kept confidential for an indefinite period; further provided
that all TI Confidential Information is and shall remain exclusively owned by
TI, and the grant in this Agreement of rights therein or access thereto does not
transfer to Anam any present or future ownership rights in the TI Confidential
Information.
10.01.02 DISCLOSURE TO THIRD PARTIES. Except as otherwise
permitted in this Section 10.01.02, Anam and Amkor hereby covenant and agree not
to disclose all or any portion of the TI Confidential Information to any third
party under any circumstances whatsoever, except to those limited few persons
for whom such disclosure is necessary for (1) the effective performance of
evaluation of the manufacturing capability of Anam, (2) the effective management
of supply and, in each case, only to the extent required for such effective
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performance, and only if such third party executes a nondisclosure agreement.
Anam and Amkor agree to indemnify TI jointly and severally for all losses, costs
or damages resulting from any breach by a customer or potential customer of such
non-disclosure agreement executed pursuant to this Agreement.
TI releases Anam to disclose to Amkor TI proprietary
information described in Annex B for the sole purpose of allowing Amkor to
market foundry services to potential customers.
TI releases Amkor to disclose to customers or potential
customers the TI proprietary information described in Annex B for the sole
purpose of marketing and providing foundry services to those customers or
potential customers, provided, that prior to transmitting any such TI
proprietary information to such customers or potential customers, Amkor will
require such customers and potential customers to execute a non-disclosure
agreement in the form attached hereto as Annex C or an agreement that is in
substance substantially equivalent thereto. TI releases Anam from the provision
in Section 12.02 of the Phase 1 TAA requiring TI to be named a third party
beneficiary of any such non-disclosure agreement; provided, however, that Anam
and Amkor agree to indemnify TI jointly and severally for all losses, costs or
damages resulting from any breach by a customer or potential customer of such
non-disclosure agreement executed pursuant to this Agreement. The release
contained in this Subsection 10.01.02 applies only to the TI proprietary
information described in Annex B.
10.01.03 EXECUTION OF CONFIDENTIALITY AND SECRECY AGREEMENTS.
Anything to the contrary in this Article 10 notwithstanding, Anam shall not
disclose any TI Confidential Information to any of its respective employees or
other personnel unless and until such employees or other personnel have, prior
to such disclosure, executed a written nondisclosure agreement, with respect to
the use, disposition and disclosure of confidential information to be disclosed
to each such employee or other personnel of Anam pursuant to Section 10.01.03
hereof.
10.01.04 MARKING OF TECHNICAL DATA EMBODYING TRADE AND INDUSTRIAL
SECRETS. To implement the covenants and obligations of Anam pursuant to this
Section 10.01, Anam shall cause all Technical Information, Associated Technical
Information and Technical Data relating to or containing information concerning
the Trade and Industrial Secrets, including, but not limited to sketches,
drawings, reports, memoranda, blueprints, photographs, recording media and
notes, and all copies, reproductions, reprints and translations thereof, created
by Anam to be plainly marked to indicate the secret and confidential nature
thereof and to prevent unauthorized access thereto and unauthorized use or
reproduction thereof. Any materials constituting Technical Information,
Associated Technical information and Technical Data relating to or containing
information concerning the Trade and Industrial Secrets provided by TI to Anam
and customer proprietary information that TI considers TI Confidential
Information shall be marked as such. Notwithstanding the foregoing, any
materials disclosed by TI to Anam under circumstances that indicate the
confidential nature of such information shall also be treated as confidential
hereunder.
10.01.05 MEASURES TO COMPEL COMPLIANCE. To further implement the
covenants and obligations of Anam pursuant to this Section 10.01, Anam shall
take all
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commercially reasonable efforts, including, but not limited to court proceedings
at its own expense, to compel compliance by its respective employees, other
persons and any third party.
10.01.06 LIMITATION AND SURVIVAL OF OBLIGATIONS. The covenants
and obligations undertaken by Anam pursuant to this Section 10.01 shall not
apply to, and TI Confidential Information shall not include, any information
which Anam can establish (i) was independently developed by Anam without any use
of TI Confidential Information or by Anam's employees or other agents (or
independent contractors hired by Anam) who have not been exposed to the TI
Confidential Information; (ii) becomes known to Anam, without restriction, from
a source other than TI that had a right to disclose it and without breach of
this Agreement; (iii) was in the public domain at the time it was disclosed or
becomes in the public domain through no act or omission of Anam; or (iv) was
rightfully known to Anam, without restriction, at the time of disclosure.
10.01.07 ANAM PROCEDURES. As soon as practicable hereafter, Anam
shall establish and implement rules and procedures with the cooperation of TI
which are not inconsistent herewith and which are sufficient to comply with
Anam's obligations set forth in this Section 10.01 as well as for the protection
of the Confidential Information of TI and TI customers.
10.01.08 RIGHT OF INSPECTION, AUDIT AND RECOMMENDATION. At any
time upon TI's written request and reasonable notice, Anam shall permit
representatives of TI or any TI customer to inspect the Facility and to review
and audit the rules and procedures established by Anam as required by Section
10.01.07 above for purposes of determining the sufficiency of such rules and
procedures and their implementation. Furthermore, TI shall have the right to
make recommendations on behalf of itself and any TI customer, not inconsistent
with TI practices in like TI facilities, to Anam for complying with Anam's
obligations set forth in this Agreement. Anam shall implement all such
reasonable recommendations within a reasonable time after written request by TI.
Anything to the contrary in this Article 10 notwithstanding, each and every
personnel of TI who shall be sent to the Anam plants or offices pursuant to this
Section 10.01.08 shall execute a nondisclosure agreement containing reasonable
terms as a condition precedent to admission or access to such plant. All of such
personnel shall fully abide by all of the plant rules and regulations of Anam or
Anam Affiliates.
10.02 TI RIGHT TO SUSPEND DELIVERY OF TECHNICAL INFORMATION OF
TI. If Anam materially breaches this Agreement, or unreasonably fails to
implement any recommendations made by TI pursuant to Section 10.01, then, TI
shall have the right to suspend its obligations under this Agreement with
respect to delivery of Technical Information, Associated Technical Information
and Technical Data without being in breach of this Agreement. Nothing in this
Section 10.02 shall limit TI's right to pursue other available remedies for such
failure to implement TI recommendations.
10.03 ANAM'S RIGHT TO TRANSFER TECHNICAL INFORMATION TO ANOTHER
FACILITY. Notwithstanding anything to the contrary contained herein, Anam may
transfer TI Technical Information and Associated Technical Information to a
wafer fabrication facility other than the Facility for purposes of allowing such
other facility to engage in wafer fabrication of Products, provided such other
facility is wholly-owned by Anam or by a wholly-owned Anam Subsidiary,
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and provided further such facility is located on the same Buchon, ROK site owned
by Anam as is located the Facility (such other facility herein referred to as a
"Related Facility"). As a condition to any such transfer to such Anam
Subsidiary, Anam shall cause such Subsidiary to execute a confidentiality
agreement with TI containing terms substantially similar to those contained in
this Article 10. Upon any such transfer, the term "Facility" as used herein
shall be deemed to include any such other Related Facility.
10.04 ANAM CONFIDENTIAL INFORMATION.
10.04.01 TI'S GENERAL OBLIGATION OF CONFIDENTIALITY AND
NONDISCLOSURE. TI hereby recognizes that the value of the technical and business
information and data of Anam, Amkor and their Affiliates (collectively the "Anam
Confidential Information") is attributable substantially to the fact that the
said information, know-how and technologies of Anam are maintained by Anam,
Amkor and their Affiliates in the strictest confidentiality and secrecy and
generally are unavailable to others without the expenditure of substantial time,
effort or money.
TI therefore covenants and agrees to keep strictly secret
and confidential the Anam Confidential Information, whether disclosed by Anam,
Amkor or their Affiliates, in accordance with the following provisions of this
Agreement. TI agrees that the Anam Confidential Information which it receives
pursuant to this Agreement is received only for use by TI and its Affiliates and
only to the extent provided in this Agreement.
Except as provided in Section 10.04.06 of this Agreement,
TI agrees to keep the Anam Confidential Information confidential until ten (10)
years after the expiration or termination of this Agreement, provided however
that Anam Confidential Information in the form of source code for any software
or microcode will be kept confidential for an indefinite period, and further
provided that nothing in this Article 10 shall grant TI any license or ownership
of Anam Confidential Information.
10.04.02 DISCLOSURE TO THIRD PARTIES. Except and only to the
limited extent necessary to market TI Products, to third parties and as
otherwise provided herein, TI hereby covenants and agrees not to disclose all or
any portion of the Anam Confidential Information to any third party under any
circumstances whatsoever, except to those limited few persons for whom such
disclosure is necessary for the effective performance of evaluation of the
manufacturing capability of Anam, and, in each case, only to the extent required
for such effective performance, and only if such third party executes a
nondisclosure agreement. TI agrees to indemnify Anam for all losses, costs or
damages resulting from any breach by a customer or potential customer of such
non-disclosure agreement executed pursuant to this Agreement.
10.04.03 EXECUTION OF CONFIDENTIALITY AND SECRECY AGREEMENTS.
Anything to the contrary in this Article 10 notwithstanding, TI shall not
disclose any Anam Confidential Information to any of its respective employees or
other personnel unless and until such employees or other personnel have, prior
to such disclosure, executed a written nondisclosure agreement with respect to
the use, disposition and disclosure of confidential information to be disclosed
to each such employee or other personnel of TI pursuant to Section 10.04.03
hereof.
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10.04.04 MARKING OF TECHNICAL DATA EMBODYING CONFIDENTIAL
INFORMATION. To implement the covenants and obligations of TI pursuant to this
Section 10.04, TI shall cause all materials, including, but not limited to
sketches, drawings, reports, memoranda, blueprints, photographs, recording media
and notes, and all copies, reproductions, reprints and translations thereof,
created by TI, relating to or containing Anam Confidential Information to be
plainly marked to indicate the secret and confidential nature thereof and to
prevent unauthorized access thereto and unauthorized use or reproduction
thereof. Any materials containing Anam Confidential Information provided by Anam
to TI that Anam considers TI Confidential Information shall be marked as such.
Notwithstanding the foregoing, any materials disclosed by Anam to TI under
circumstances that indicate the confidential nature of such information shall
also be treated as confidential hereunder.
10.04.05 MEASURES TO COMPEL COMPLIANCE. To further implement the
covenants and obligations of TI pursuant to this Section 10.04, TI shall take
all commercially reasonable efforts, including, but not limited to court
proceedings at its own expense, to compel compliance by its respective
employees, other persons and any third party.
10.04.06 LIMITATION AND SURVIVAL OF OBLIGATIONS. The covenants
and obligations undertaken by TI pursuant to this Section 10.04 shall not apply
to, and Anam Confidential Information shall not include, any information which
TI can establish (i) was independently developed by TI without any use of Anam
Confidential Information or by TI's employees or other agents (or independent
contractors hired by TI) who have not been exposed to the Anam Confidential
Information; (ii) becomes known to TI without restriction, from a source other
than Anam that had a right to disclose it and without breach of this Agreement;
(iii) was in the public domain at the time it was disclosed or becomes in the
public domain through no act or omission of TI; or (iv) was rightfully known to
TI, without restriction, at the time of disclosure.
ARTICLE 11
TERMINATION, CURE OF BREACH, CONCILIATION, AND REMEDIES
11.01 TERMINATION OF AGREEMENT. Where the following grants to a Party
the right to terminate this Agreement, such Party may exercise such right by
furnishing the other Party written notice to that effect, and such termination
shall take effect upon the other Party's receipt thereof, subject to any cure or
transition period that may otherwise apply hereunder.
11.01.01 EXPIRATION OF THE TERM. Unless extended, upon the
expiration of the Term, this Agreement shall terminate automatically;
11.01.02 NO NEW TECHNICAL ASSISTANCE AGREEMENT. Either Party may
terminate this Agreement, in accordance with Section 15.02, if the Parties fail
to negotiate a new technical assistance agreement or an amendment to this
Agreement for Future Technology Nodes; or
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11.01.03 MUTUAL AGREEMENT OF THE PARTIES. The Parties may
mutually agree to terminate this Agreement, in which event the future
relationship of the Parties shall be determined by the Parties; or
11.01.04 AN UNCURED MATERIAL BREACH. Subject to Sections 11.02,
11.03 and 11.04 of this Agreement, a Party may terminate this Agreement and the
MPA in the event of a material breach of the other Party. A material breach
includes without limitation (i) a curable breach that is not cured in accordance
with Section 11.03, and (ii) a material breach of Article 10 of this Agreement.
11.01.05 FAILURE TO SATISFY CERTAIN CONDITIONS PRECEDENT OR
SUBSEQUENT. If any event described in this subsection 11.01.05 occurs, with the
result that the purposes of this Agreement are substantially frustrated, the
Parties shall enter into good faith negotiations with the objective of
restructuring the relationship between them such that the effects of such
occurrence shall be minimized. If the Parties cannot agree on a mutually
agreeable restructuring or modification of this Agreement within six (6) months
of either Party's request for such negotiations, either Party shall have the
right to terminate this Agreement forthwith in its entirety under this Article
11 (except for the obligations under Articles 8, 10, 11 and Section 16.01.04 and
any non-disclosure agreements, which shall survive such termination) by giving
written notice to that effect to the other Party. The conditions covered by this
subsection 11.01.05 are:
[ * ]
* Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
11.01.06 CHANGE IN CONTROL, LIQUIDATION, BANKRUPTCY, ETC. Upon
the change in control of a Party or its parent company the other Party may
terminate this Agreement. For the purposes of the foregoing a "change of
control" of a party shall mean the sale of more than fifty percent of the stock
of a Party in a single transaction or a series of related transactions, the
merger of a Party with another entity where the Party is not the surviving
entity or a sale of all or substantially all of the assets of a Party to which
this Agreement relates. Notwithstanding the foregoing, a merger of Anam and
Amkor, the acquisition by Amkor of Anam's assets or stock, or the acquisition by
Anam of Amkor's assets or stock, shall not constitute a change of control.
Either Party may terminate this Agreement upon the liquidation, bankruptcy,
receivership, custodianship or dissolution of the other Party (whether
voluntarily or involuntarily).
11.01.07 ADVERSE GOVERNMENT INTERVENTION. At any time during the
Term, should any government or government agency take any action or inaction
adverse to any Party, including, but not limited to any refusal to grant the
benefits of the Foreign Capital Inducement Law of the Republic of Korea or any
other necessary government approval, or make recommendations to the Parties or
any of them requiring directly or indirectly, formally or informally, alteration
or modification of any term or condition of this Agreement or the MPA, in a
manner that is material and adverse to one Party, within sixty (60) days from
said action, inaction or recommendation of the government or government agency,
the Parties hereto shall enter into good faith negotiations with the objective
of restructuring the relationship between the
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Parties hereto in a manner such that the adverse effect of said alteration or
modification of this Agreement and the MPA will be minimized. If the Parties
cannot reach an acceptable modification to such agreements within three (3)
months from the date of dispatch of said written request, or within such longer
period of time as mutually agreed upon, either Party shall have the right to
terminate this Agreement and the MPA by giving written notice to that effect to
the other Party. In the event this Agreement and the MPA is terminated pursuant
to this Section 11.01.07, all rights under this Agreement and the MPA granted by
either Party shall cease and terminate. It is expressly understood and agreed by
the Parties hereto that in the event of such termination, neither Party will
incur any liability to the other Party for any alleged default or breach in the
performance of this Agreement or the MPA arising from the exercise of the right
herein provided to terminate this Agreement and the MPA as the case may be
unless it can be established by a Party that the other Party acted in
conjunction with said government body or agency to bring about the intended
result. Except as provided in the previous sentence, compliance by either Party
with this Section 11.01.07, shall not be deemed a breach under any provision of
this Agreement or the MPA. In event of a conflict between this Section 11.01.07
and Article 12, this Section shall prevail.
Upon a termination of this Agreement based on the
occurrence of the event described in this Section 11.01.07, TI shall reimburse
Anam the Technical Assistance Fee to the extent TI has failed to incur costs in
performing its obligations hereunder due to such termination.
11.02 RESOLUTION OF DISPUTES. It is the intent of the Parties that any
breach of this Agreement be resolved in an amicable manner, to the fullest
extent possible, and that any such resolution be reasonable in light of the
rights and obligations of the Parties. If any breach should arise which cannot
be resolved by the personnel of each Party directly involved, the following
procedures of Sections 11.03 through 11.05 inclusive shall apply in each of the
circumstances described below.
11.03 CURE. If either Party (the "Breaching Party") shall at any time
breach this Agreement, without any material causative fault on the part of the
other Party (the "Non-Breaching Party"), by failing to perform any provision of
this Agreement, the Non-Breaching Party may advise of its intention to terminate
this Agreement in accordance with Section 11.01.04 and this Section 11.03 by
providing formal written notice of breach pursuant to Section 14.10 to the
Breaching Party specifying the breach. Notice for purposes of the foregoing
provided other than in strict accordance with Section 14.10 will not be
effective. Notwithstanding the foregoing, this Agreement will not be terminated
if (i) the breach specified in the notice is remedied within the sixty (60) day
period following receipt of the notice by the Breaching Party or (ii) if the
breach reasonably requires more than sixty (60) days to correct, the Breaching
Party has, within thirty (30) days from receipt of the notice of breach, begun
substantial corrective action to cure the breach and submitted a written
remediation plan to the Non-Breaching Party's Program Coordinator providing a
detailed explanation of the steps to be taken to cure the breach as quickly as
practicable, the Breaching Party diligently pursues such corrective action, and
such breach is actually cured within ninety (90) days following receipt of the
notice of breach. If any breach is not cured within the time permitted, the
Non-Breaching Party shall have the right to issue a notice of termination of
this Agreement within 90 days of the expiration of the foregoing cure period by
giving written notice thereof to the Breaching Party.
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The Non-Breaching Party shall state in its notice of termination whether it
intends to exercise its option to terminate the MPA. Upon the giving of such
notice of termination this Agreement shall terminate in accordance with Section
11.06. The Party receiving notice shall have the right to cure any such breach
up to the date of termination. In the event of a material breach, the
Non-Breaching Party shall have the right to suspend further implementation or
effectuation of its obligations under this Agreement, and shall not be obligated
to resume such activities until such breach has been cured. This Section 11.03
shall run concurrently with the conciliation process set forth in Section 11.04
below.
11.04 CONCILIATION PROCESS. At any time during the Term, upon the
occurrence of one or more breaches under this Agreement, the Non-Breaching Party
shall promptly deliver written notification to the alleged Breaching Party
setting out in reasonable detail and in clear and concise language the good
faith basis for and the specifics of such breach. Within the applicable cure
period provided in Section 11.03, either Party has the right to demand the
following meetings:
(a) Upon fourteen (14) calendar days' notice, a meeting of the
Program Coordinators for the purposes of, among other things:
(i) assessing the good faith basis for the claimed breach;
(ii) defining, assessing and prioritizing the alternatives
reasonably available to cure such breach or to correct the circumstances or
situations that gave rise to such breach so as to make its reoccurrence
unlikely; and
(iii) adopting by unanimous vote, one or more curative or
corrective courses of action.
(b) If, after meeting in accordance with Section 11.04(a), the
Program Coordinators are unable to resolve the breach, a meeting of an advisory
committee consisting of the President of Anam and the TI Executive Vice
President responsible for the Semiconductor Group and two additional personnel
of their choice, one of each from TI and Anam or Amkor for further attempts at
resolution, upon fourteen (14) calendar days' notice.
(c) If, after meeting in accordance with Section 11.04(b), such
advisory committee is unable to resolve the dispute, a meeting of the respective
Chief Executive Officer of each of TI and Anam for the purpose of attempting to
resolve the breach, upon fourteen calendar days' notice.
11.05 REMEDIES, INJUNCTIVE AND OTHER EQUITABLE RELIEF.
11.05.01 REMEDIES. Upon the failure to cure a material breach by
either Party of any provision of this Agreement, the Non-Breaching Party shall
have the right to pursue all available remedies at law or in equity that it may
elect, including but not limited to specific performance or injunctive relief,
in order to obtain the benefits which have been provided pursuant to this
Agreement and the MPA, or to obtain adequate recourse or compensation in the
event the same are not so provided.
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11.05.02 INJUNCTIVE RELIEF FOR CONFIDENTIAL INFORMATION, TRADE
AND INDUSTRIAL SECRETS, ETC. The Parties agree that unauthorized use or
disclosure of a Party's Confidential Information or failure to adequately
protect a Party's technologies or intellectual property will diminish the value
of such Confidential Information or technology (including in the case of TI the
Advanced Available Technology, Technical Information, Associated Technical
Information, Technical Data, Trade and Industrial Secrets), and such Party's
intellectual property rights and that monetary damages alone will not provide an
adequate remedy. Therefore, if a Party breaches (or a Party has reason to
believe that the other Party may be about to breach) any of its related
obligations hereunder, the relevant Party shall be entitled to immediate
equitable relief to protect its technologies and intellectual property rights,
including but not limited to injunctive relief, as well as monetary damages.
11.05.03 RIGHT TO USE ADVANCED AVAILABLE TECHNOLOGY.
(i) In the event of termination of this Agreement for a
reason other than a material breach by Anam, Anam shall be permitted to continue
to use the delivered Technical Information and Associated Technical Information
only in the Facility and any Related Facility, with no right to use, transfer,
assign or otherwise provide directly or indirectly any Technical Information or
Associated Technical Information to any other facility, Affiliate, third party,
person, etc.
(ii) In the event Section 11.05.03(i) is implemented, Anam
agrees to continue to pay to TI the royalty set forth in Section 5.03.
(iii) Nothing in this Section 11.05.03 shall be deemed to
be a waiver or an abrogation of any other right or remedy of any Party under
Article 11 of this Agreement.
11.06 TERMINATION PROCEDURE. Following the issuance of a notice of
termination by the Non-Breaching Party in accordance with Section 11.03, the
Parties shall promptly meet and establish, in good faith, a reasonable
transition plan that will permit for a period not to exceed two years: (i) Anam,
subject to the payment of royalties under any TAA (including Section 5.03.01 of
the Phase 2 TAA), to continue to use the technology provided to it under such
TAA so that it will have the ability to continue in the foundry business using
TI technology and at the same time transition to another process technology by
the end of such period, and (ii) TI to continue to purchase TI Products from
Amkor in the manner provided in this Agreement so that TI's supply of products
will not be interrupted in such period while TI transitions to another source
for such products. If during the transition period, Amkor or Anam repeatedly and
materially fail to fulfill TI's reasonable requirements for TI Products, TI may
terminate the transition period upon sixty days' notice.
ARTICLE 12
FORCE MAJEURE
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12.01 Should either Party be prevented from performing its contractual
obligations under this Agreement due to the cause or causes of force majeure
such as new acts of war or aggression (declared or undeclared) by North Korea or
other third country or economy, fire, storm, flood, typhoon or other severe
weather conditions, earthquake, strike, student unrest, legal restraints,
government or like interference, judicial action, accidental damage to
equipment, as well as any other cause outside the control of that Party, that
Party shall not be liable to the other Party for any delay or failure of
performance caused by any of the above events. "Force majeure" shall include the
failure to obtain such license(s) and other approvals, including export
licenses, as are required by U.S. law or other applicable law for the equipment,
software, technology and Products to be provided pursuant to the terms of this
Agreement, except where such failure is due to a Party's breach of this
Agreement.
12.02 In addition to providing notice in the manner set out in Section
14.10, the Party affected by Force Majeure shall notify the other Party of the
occurrence of any of the events set out in Section 12.01 in writing by cable,
telex, facsimile, or electronic mail within the shortest possible time.
12.03 Should the delay caused by any of the above events continue for
more than ninety (90) days, the Parties shall settle the problem of further
performance of the Agreement through friendly negotiations as soon as possible
with the objective of restructuring the relationship among them such that the
effects of such delay are minimized. If the Parties cannot agree on a mutually
acceptable solution within six (6) months of any Party request for such
negotiations either Party may terminate this Agreement and the MPA by prior
written notice to the other Party.
ARTICLE 13
APPLICABLE LAWS
13.01 This Agreement shall be governed by, construed and enforced in
accordance with the laws of Texas, U.S.A., as applicable to contracts made and
fully performed in Texas. Anam hereby irrevocably consents to the jurisdiction
of the courts of the State of Texas and of Federal courts of the U.S.A. located
in the State of Texas.
13.02 Anam shall comply with all applicable U.S. Laws, Korean Laws and
all other applicable laws. Anam, its officers, employees or agents will not
participate in or provide any information in furtherance of any boycott in
violation of U.S. law or offer to pay or receive any bribe to/from any
individual or corporation. When other individuals or organizations are required
to participate in programs of Anam, they shall be compensated fairly based on
the task performed. In no circumstances are public servants or other holders of
public offices to be offered or paid any bribe or other benefits, directly or
indirectly.
13.03 TI shall comply with all applicable U.S. Laws, Korean Laws and all
other applicable laws. TI, its officers, employees or agents will not
participate in or provide any information in furtherance of any boycott in
violation of U.S. law or offer to pay or receive any bribe to/from any
individual or corporation. When other individuals or organizations are required
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to participate in programs of TI, they shall be compensated fairly based on the
task performed. In no circumstances are public servants or other holders of
public offices to be offered or paid any bribe or other benefits, directly or
indirectly.
ARTICLE 14
MISCELLANEOUS
14.01 ANNEXES AND SCHEDULE. Annexes A, B and C and Schedule 1 to this
Agreement are integral parts thereof. Subject to Section 14.08, all amendments,
supplements and alterations to this Agreement shall be made in written form and
signed by the authorized representative of the Parties, and such shall
thereafter form an integral part of this Agreement.
14.02 OFFSET REQUIREMENTS. In the event the government of the Republic
of Korea imposes on TI or TI Affiliates offset requirements in other TI projects
or investments in the Republic of Korea, then Anam agrees to use reasonable
commercial efforts, upon TI request, to convince the government that the
transfer of Advanced Available Technology by TI and sales of TI Products to TI
hereunder should be credited for offset purposes.
14.03 SEVERABILITY. In the event that any of the provisions of this
Agreement, or portions thereof, or documents referenced herein are held to be
unenforceable or invalid by any court of competent jurisdiction, the validity
and enforceability of the remaining provisions, or portions thereof, shall not
be affected thereby. If the purposes of this Agreement are substantially
frustrated by any events contemplated by this Section 14.03 any Party may
terminate this Agreement in the manner as if the conditions of Section 11.01
(iii) existed.
14.04 CONFIDENTIALITY OF THIS AGREEMENT. No Party, without the prior
written consent of the other, shall either issue or cause the issuance of a
press release or public announcement or disclose to any third party the contents
of this Agreement or the transactions contemplated hereby. Under this
requirement a Party shall be permitted to disclose, under confidentiality and
use restrictions, such terms of this Agreement as are reasonably required to be
disclosed in response to reasonable requests made by governmental authorities or
potential investors or lenders not affiliated with any semiconductor developer
or manufacturer in the ordinary course of seeking governmental approvals
(including in connection with the requirements of the U.S. Securities and
Exchange Commission or similar authorities) or for obtaining debt or equity
financing, bank credit or the like.
Notwithstanding the foregoing or anything to the contrary set forth in the Phase
I TAA, each party may disclose the existence of this Agreement and the general
fact that the Parties have entered into the Manufacturing and Purchase Agreement
and this Agreement.
14.05 HEADINGS. The headings of the Articles and Sections of this
Agreement are for reference purposes only and shall not be deemed to affect in
any way the meaning or interpretation of the Articles to which they refer.
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14.06 WAIVER. The failure on the part of any Party to exercise or
enforce any rights conferred on it hereunder shall not be deemed to constitute a
waiver of any rights nor operate to bar the exercise or enforcement of any
rights at any time or at times thereafter.
14.07 FURTHER ACTIONS. The Parties agree to execute and deliver to each
other all additional instruments, to provide all information, and to do or
refrain from doing all further acts and things as may be necessary or as may be
reasonably requested by any Party hereto, more fully to vest in, and to assure
each Party of, all rights, powers, privileges, and remedies herein intended to
be granted to or conferred upon such Party.
14.08 ASSIGNMENT. A Party shall not, without the prior written consent
of the other Party, assign, transfer or delegate this Agreement or any right or
duty under this Agreement or portion thereof (including an assignment or
delegation by operation of law), other than in connection with (a) a
reincorporation as a result of which substantially all the assets of the
original reincorporating Party are owned by the reincorporated entity to which
such assignment is made, or (b) a merger between Anam and Amkor, or (c) the
acquisition by Amkor of all or substantially all of Anam's assets or stock, or
(d) the acquisition by Anam of all or substantially all of Amkor's assets or
stock. Notwithstanding the foregoing, TI may assign or delegate this Agreement
or any obligation hereunder to any Subsidiary of TI upon written notice to Anam.
In such event, TI shall guarantee such Subsidiary's performance of its
obligations under this Agreement and such assignment shall not release TI of any
of its obligations hereunder. Any attempted assignment or delegation, other than
as expressly permitted in this Section 14.08, shall be null and void.
14.09 NO THIRD PARTY BENEFICIARIES. Except as specifically set forth or
referred to herein nothing express or implied in this Agreement is intended to
or shall be construed to confer upon or to give any person other than the
Parties hereto and their successors or assigns, any rights or remedies under or
by reason of this Agreement.
14.10 NOTICES. All notices and formal communications required under
Article 8, 11, 12 or 15 of this Agreement, or relating to any other condition,
act or event that may materially affect the, performance or rights of either
Party or a Party's Affiliate hereunder, shall be served on each Party in writing
via facsimile transmission (confirmed by registered letter), registered letter,
telex or prepaid cable, to the following persons at the following addresses and
fax numbers:
if to TI:
Mr. Xxxxx Xxxxxxx
00000 Xxxxx Xxxx, X/X 000
Xxxxxx, Xxxxx 00000
Fax: 972/000-0000
with a copy to:
General Counsel
0000 Xxxxxxxxx Xxx, X/X 0000
Xxxxxx, Xxxxx 00000
Fax: 972/000-0000
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if to Anam:
Xx. Xxxxx X. Park
222, Dodang-dong
Wonmi-gu, Buchon
Kyunggi-do, Korea 420-130
Fax: 000-000-0000
with copies to:
Xx. Xxxx X. Xxxxxx
XX Plaza
000 Xxxx Xxxxxxxxx #000
Xxxxx, XX 00000
Fax: 208/000-0000
Xxxxx Xxxxx, Esq.
General Counsel
Amkor Technology, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xx 00000
Fax: 610/000-0000
Mr. Ki Xxxxx Xxx, Esq.
Hanol Law Offices
14th Floor, Oriental Chemical Xxxxxxxx
00 Xxxxxx-Xxxx, Xxxxx-Xx
Xxxxx, Xxxxx 100-718
Fax: 000-000-0000
Either Party may change the above addresses by furnishing notice to that effect
in the manner provided above.
14.11 ENGLISH. All correspondence of which TI is a recipient or sender
shall be in English. All documents which are issued in Korea pursuant to the
Agreement shall be provided to TI in English translation.
14.12 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, in English, each of which shall be enforceable by or against the
Parties executing such counterparts, and all of which together shall constitute
one instrument.
14.13 INSURANCE. Anam and TI shall obtain and maintain throughout the
Term such kinds and amounts of insurance as are reasonable and customary in the
trade, including but not limited to insurance covering product liability, theft,
fire, worker's compensation, etc.
14.14 UNFAIR COMPETITION. During the Term, no Party nor any Affiliate
shall solicit, whether directly or indirectly, for employment or hire, employ
any employee of the other Party
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with whom they have come into direct contact in connection with the transactions
contemplated by this Agreement without the prior written consent of the other
Party.
14.15 SURVIVAL. Notwithstanding anything to the contrary herein,
Articles 5, 7, 8, 9, 10, 13 and Section 11.05.03 shall survive the cancellation,
termination or expiration of this Agreement.
ARTICLE 15
TERM
15.01 TERM. The Term shall commence on the Effective Date and shall
continue through December 31, 2007, unless (i) terminated under Article 13.00 or
otherwise according to this Agreement, or (ii) terminated in accordance with
Section 15.02 below if the Parties fail to negotiate in good faith and execute
either a new technical assistance agreement or an amendment to this Agreement
for Future Technology Nodes on or before June 30, 2000.
15.02 MODIFIED TERM. If, following a meeting of the Chief Executive
Officers of the Parties, the Parties are unable successfully to negotiate in
good faith and execute a new technical assistance agreement or amendment by June
30, 2000, then either Party may give the other Party a two-year notice of
termination, whereupon the Parties shall agree (i) on a transition schedule,
provided, however, that to the extent that the Parties cannot agree on a
reasonable transition schedule, TI's minimum loading commitment during said
remainder two-year period shall be lowered to twenty percent (20%), and (ii) on
a modification of the TAA to permit Anam to obtain a new technology provider, or
otherwise introduce new technology, during such two-year period.
ARTICLE 16
ADDITIONAL REPRESENTATIONS, WARRANTIES, AND COVENANTS
16.01 ADDITIONAL REPRESENTATIONS AND WARRANTIES OF ANAM TO TI. Anam
additionally represents and warrants to TI as follows:
16.01.01 ENFORCEABLE OBLIGATIONS. Anam will be at the time of
execution a corporate citizen of the Republic of Korea in good standing and not
subject to any criminal penalty, criminal charges, disciplinary proceedings or
criminal proceedings under the Korean Laws or the laws of any other country that
would materially and adversely affect the performance of Anam hereunder. With
respect to this Agreement Anam will have the authority and legal right to
execute and deliver such Agreement and to perform its obligations hereunder and
to consummate the transactions contemplated hereby, except where the performance
of TI is a condition precedent to Anam's performance. This Agreement will
constitute, when executed and delivered, the valid, legal and binding
obligations of Anam, enforceable against Anam, in accordance with its respective
terms, except (a) as such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or thereafter in
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effect relating to creditors' rights; and (b) as the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
16.01.02 VALIDITY OF CONTEMPLATED TRANSACTIONS. The execution,
delivery and performance of this Agreement by Anam does not and will not (i)
violate, conflict with or result in the breach (collectively, "Breach") of any
term, condition or provision of, or result in the creation of any encumbrance
under, (a) any existing law, ordinance, or governmental rule or regulation to
which Anam is subject, (b) any judgment, order, writ, injunction, decree or
award of any governmental entity which is applicable to Anam, (c) the charter
documents of Anam or any securities issued by Anam; or (d) any mortgage,
indenture, agreement, contract, commitment, lease, plan, authorization, or other
instrument, document or understanding, oral or written, to which Anam is a party
or by which Anam may have rights, except, as to such performance, such Breaches
and encumbrances as would, if occurred or created, not have a material adverse
effect on the ability of Anam to perform its obligations hereunder and
thereunder, or (ii) give any party with rights thereunder the right to
terminate, modify, accelerate or otherwise change the existing rights or
obligations of Anam.
16.01.03 RESTRICTIONS. Anam neither is nor will be a party to any
indenture, agreement, contract, commitment, lease, license, permit,
authorization or other instrument, document or understanding, oral or written,
nor subject to any restriction in any charter document or other corporate
restriction or any judgment, order, writ, injunction, decree or award, which
materially adversely affects or materially restricts or, to the knowledge of
Anam, may in the future materially adversely affect or materially restrict the
performance by Anam of its obligations hereunder.
16.01.04 CONSENT. No consent or approval by, or notification of,
or filing with, any person is required which has not been obtained in connection
with the execution, delivery and performance by Anam of this Agreement, or the
consummation of the transactions contemplated hereby, other than such consents
or approvals as would, if not obtained, not have a material adverse effect on
the ability of Anam to perform its obligations hereunder.
16.02 ADDITIONAL REPRESENTATIONS AND WARRANTIES OF TI TO ANAM. TI
additionally represents and warrants to Anam as follows:
16.02.01 ENFORCEABLE OBLIGATIONS. TI will be at the time of
execution a corporate citizen of the United States of America in good standing
and not subject to any criminal penalty, criminal charges, disciplinary
proceedings or criminal proceedings under the U.S. laws or the laws of any other
country that would materially and adversely affect the performance of TI
hereunder. With respect to this Agreement, TI will have the authority and legal
right to execute and deliver such Agreement and to perform its obligations
hereunder and to consummate the transactions contemplated hereby, except where
the performance of Anam is a condition precedent to TI's performance. This
Agreement will constitute, when executed and delivered, the valid, legal and
binding obligations of TI, enforceable against TI, in accordance with its
respective terms, except (a) as such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or thereafter
in effect relating to creditors' rights; and (b) as the remedy of specific
performance and injunctive and other forms
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of equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
16.02.02 VALIDITY OF CONTEMPLATED TRANSACTIONS. The execution,
delivery and performance of this Agreement by TI does not and will not (i)
violate, conflict with or result in the Breach of any term, condition or
provision of, or result in the creation of any encumbrance under, (a) any
existing law, ordinance, or governmental rule or regulation to which TI is
subject, (b) any judgment, order, writ, injunction, decree or award of any
governmental entity which is applicable to TI, (c) the charter documents of TI
or any securities issued by TI, (d) any agreement or understanding to which TI
is a party; or (e) any mortgage, indenture, agreement, contract, commitment,
lease, plan, authorization, or other instrument, document or understanding, oral
or written, to which TI is a party or by which TI may have rights, except, as to
such performance, such Breaches and encumbrances as would, if occurred or
created, not have a material adverse effect on the ability of TI to perform its
obligations hereunder and thereunder, or (ii) give any party with rights
thereunder the right to terminate, modify, accelerate or otherwise change the
existing rights or obligations of TI.
16.02.03 RESTRICTIONS. TI neither is nor will be a party to any
indenture, agreement, contract, commitment, lease, license, permit,
authorization or other instrument, document or understanding, oral or written,
nor subject to any restriction in any charter document or other corporate
restriction or any judgment, order, writ, injunction, decree or award, which
materially adversely affects or materially restricts or, to the knowledge of TI,
may in the future materially adversely affect or materially restrict the
performance by TI of its obligations hereunder.
16.02.04 CONSENT. No consent or approval by, or notification of,
or filing with, any person is required which has not been obtained in connection
with the execution, delivery and performance by TI of this Agreement, or the
consummation of the transactions contemplated hereby, other than such consents
or approvals as would, if not obtained, not have a material adverse effect on
the ability of TI to perform its obligations hereunder.
16.03 FUTURE TECHNOLOGY NODES. In accordance with Article 15, the
Parties agree to negotiate an agreement for Future Technology Nodes.
Notwithstanding the foregoing, until the consummation of any such agreements, TI
shall be under no obligation to provide to Anam any Future Technology Nodes. In
consideration of the foregoing, Anam agrees that neither it, Amkor, nor any
Affiliate shall engage in any semiconductor wafer fabrication at the Facility
other than through the use of TI process technology in accordance with the Phase
1 TAA, this Agreement or other agreement with TI covering one or more Future
Technology Nodes, except as provided in Section 15.02(ii).
16.04 FACILITY EXPANSION.
16.04.01 Anam agrees that neither it, Amkor, nor any other Anam
Affiliate will expand the Facility or the Capacity, or construct or operate a
Related Facility, without advanced prior written notification to TI.
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16.04.02 Should the Facility's capacity exceed 25,000 wafer
starts per month, or should Anam, Amkor or another Anam Affiliate constrict or
operate a Related Facility, Anam shall cause TI to have the right of first
refusal to any such additional capacity; provided however, TI shall have the
right not to load such additional capacity, in part or in whole, in which such
case, Anam shall be responsible solely for filling any such additional capacity;
and further provided, all other terms and conditions of the MPA and this
Agreement shall apply to such additional manufacturing availability.
16.05 FOUNDRY ONLY. Anam agrees that, other than for the manufacture of
TI Products, only foundry manufacturing services for independent merchant market
semiconductor companies shall be undertaken at the Facility or any other wafer
fabrication facility owned or controlled by Anam, Amkor or any other Anam
Affiliate, and that in no event shall Anam, Amkor, or any other Anam Affiliate
produce or sell Anam proprietary semiconductors.
16.06 TECHNOLOGY REVIEWS. On a semi-annual basis, alternating between
Dallas and Korea, the Parties shall meet to exchange information to implement
the technology transfers pursuant to Sections 2.01.03(c) and 6.02(c).
ARTICLE 17
OTHER AGREEMENTS
17.01 AGREEMENT PRECEDENCE. In the event of any conflict between this
Agreement and the Phase 1 TAA, this Agreement shall prevail.
17.02 AMENDMENT OF THE PHASE 1 TAA. The Parties agree that, in
accordance with the Section 17.02, the following articles and sections of this
Agreement shall supersede and replace the corresponding terms and conditions of
the Phase 1 TAA and shall apply mutatis mutandis to the Phase 1 TAA which is
hereby amended in accordance with this Section 17.02. Except as stated in this
Section the Phase 1 TAA shall not be considered revised or amended in any way by
this Agreement.
17.02.01 LICENSES. Section 2.09 of the Phase 1 TAA is replaced
and superseded by Article 5 of this Agreement.
17.02.02 TECHNICAL ASSISTANCE. Articles 3 and 4 of the Phase 1
TAA are replaced and superseded by Articles 3 and 4 of this Agreement.
17.02.03 DISCLAIMERS AND LIMITATIONS OF LIABILITY. Article 10 of
the Phase 1 TAA is replaced and superseded by Article 8 of this Agreement.
17.02.04 CONFIDENTIALITY. Article 12 of the Phase 1 TAA is
replaced and superseded by Article 10 of this Agreement.
17.02.05 TERMINATION, CURE OF BREACH, CONCILIATION, AND REMEDIES.
Article 13 of the Phase 1 TAA is replaced and superseded by Article 11 of this
Agreement.
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17.02.06 MISCELLANEOUS. Article 16 of the Phase 1 TAA is replaced
and superseded by Article 14 of this Agreement.
17.02.07 ADDITIONAL REPRESENTATIONS, WARRANTIES, AND COVENANTS.
Article 18 of the Phase 1 TAA is replaced and superseded by Article 16 of this
Agreement.
17.03 INTEGRATION. This Agreement and the Manufacturing and Purchase
Agreement contain the entire understanding and agreement among the Parties with
respect to the subject matter hereof and supersedes all prior oral and written
understandings and agreements relating thereto, and may not be modified,
discharged or terminated except by the written consent of the Parties.
IN WITNESS WHEREOF, and intending to be legally bound hereby, TI and Anam have
caused their duly authorized representatives to execute this Agreement.
ANAM INDUSTRIAL CO., LTD. TEXAS INSTRUMENTS INCORPORATED
By:______________________________ By:_________________________________
Name:____________________________ Name:_______________________________
Title:___________________________ Title:______________________________
Date:____________________________ Date:_______________________________
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ANNEX A
I. DEFINITIONS: All defined terms in this Annex A will have the same
definitions as defined in Article 1 of the Agreement.
II. TECHNICAL ASSISTANCE FEE:
TECHNICAL ASSISTANCE FEE. The technical assistance fee payable by Anam
to TI shall be [ * ]
Anam shall use reasonable commercial efforts to achieve the events which
trigger the respective installment payments set forth above. In the event Anam
fails to achieve any of those events, all payments of the Technical Assistance
Fee referred to above shall be accelerated automatically, becoming due and
payable immediately.
All payments shall be in U.S. Dollars and shall be grossed-up to reflect
any tax or withholding requirements imposed by any governmental agency of the
Republic of Korea.
* Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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ANNEX B
Technical Documentation List for Coverage Under NDA
1. Customer Technical Sales Presentations which may include the following
information:
(a) XXXXC10 physical layout rule overview (dimensions, pitches, etc.)
(b) Electrical performance specifications
o Transistor electrical specifications
o Figure of merit
o Delay specs (circuit, interconnect)
o Interconnect capacitance, inductance
(c) Top level process flow
o Cross sections
o List of mask layers
(d) Overview of process characteristics
o Substrate & well type
o Isolation method
o Gate oxide type & thickness
o Type of lithography
o Metalization type and contact, etc.
o Etch type (generic, not recipe specific)
o Planarization overview
(e) Quality and reliability specifications
o Pass/fail criteria
o Tests and test conditions
o Quality plans and results
(f) Top Level Equipment Lists
o Not to include written lists of equipment models, options, etc
(e.g. TI's AEL-Approved Equipment List)
o Not to include any equipment specific models or options for etch
processes.
o Can include verbal responses to a minimum set of specific
questions relating to the state of the art of the equipment set
used in the facility, this is not expected to exceed
approximately 6-8 specific details.
2. Physical/electrical process specification document for 25C10.C. process
family (Anam/Amkor Semiconductor version of TI EPIC 0.35 PDE)
(a) Process information, description, flow outline with cross sections
(b) Layout rules
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(c) Temperature coefficients of resistivity
(d) Maximum current densities
(e) Capacitance
(f) Direct memory access spec
(g) Die ID spec
3. Spice Model Parameters for XXXXC10.
(a) BSIM3V3
(b) Machine readable decks & paper copies
4. DRC, LVS Scripts for XXXXC10
5. Quality and Reliability Specifications Document for XXXXC10
(a) Pass/Fail criteria
(b) Tests and test conditions
6. Quality and Reliability Test Results Documentation
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ANNEX C
CONFIDENTIAL INFORMATION AGREEMENT
This Confidential Information Agreement ("Agreement"), is made and
entered into as of this _____ day of __________, 199__ ("Effective Date"), by
and between ("Customer") and Amkor Electronics, Inc., 0000 Xxxxxxxxxx Xxxxx,
Xxxx Xxxxxxx, XX 00000.
WHEREAS, the parties hereto acknowledge that certain Confidential
Information shall be disclosed between them which they regard as proprietary or
confidential relating to semiconductor wafer fabrication and device technology.
WHEREAS, the parties wish to protect their rights relative to such
Confidential Information;
THEREFORE, in consideration of the premises and covenants contained
herein, the parties hereto agree as follows:
1. Definitions
(a) "Recipient" shall mean the party receiving the Confidential
Information
(b) "Disclosing Party" shall mean the party revealing or
disclosing the Confidential Information.
(c) "Confidential Information" shall generally mean any
proprietary or non-public Confidential Information or materials which are owned
or controlled by the Disclosing Party, both of which are disclosed under the
following terms and conditions.
2. Term
This Agreement shall become effective on the date first set forth above
("Effective Date") and shall terminate either at the end of three (3) years from
the Effective Date hereof, upon completion of the Activity, or upon the written
election to terminate by either party delivered to the other. The obligations
regarding confidentiality shall continue for a period of five (5) years from
disclosure of Confidential Information, notwithstanding any termination of this
Agreement.
3. Form; Use; Nondisclosure Obligations
(a) Customer may use Confidential Information delivered hereunder
solely for the purpose of evaluating Customers possible use of Anam Industrial
Co., Ltd. ("Anam") as a semiconductor wafer fabrication foundry and of designing
Customer's semiconductor devices such that they may be manufactured with the
process used by Anam.
(b) Confidential Information may be furnished in any tangible or
intangible form, including but not limited to writings, drawings, computer tapes
and other electronic media, samples and verbal communications. Any Confidential
Information furnished in tangible form
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shall be conspicuously marked as such and the content of any verbal
communication will be reduced to a writing that identifies the Confidential
Information within thirty (30) days of the disclosure with a copy of such
writing furnished to the Recipient.
(c) The parties shall not disclose or divulge to any person or
entity, except those of its employees who have a need to know, any Confidential
Information which either party or their affiliated companies, including, but not
limited to, Anam, may reveal under this Agreement and shall not use said
Confidential Information in any manner whatsoever, directly or indirectly,
except as expressly permitted herein. The parties shall protect the
confidentiality of and take all reasonable steps to prevent disclosure or
unauthorized use of the Confidential Information, and shall use at least as much
care in preventing disclosure of Confidential Information as it uses with
respect to its own proprietary information of like importance.
(d) The Disclosing Party retains all right, title, and interest
in and to the Confidential Information it furnishes hereunder.
(e) The Recipient shall advise the Disclosing Party in writing in
the event the Recipient becomes aware of any unauthorized dissemination,
misappropriation, or misuse of Confidential Information by any person and
provide assistance to Disclosing Party to mitigate any damages caused thereby
and to limit any further dissemination or misuse of the Confidential
Information.
4. Exclusions
Nothing in this Agreement shall apply to any Confidential Information
(a) which is now generally known or readily available to the
trade or public or which becomes so known or readily available without fault of
Recipient;
(b) which is possessed by Recipient without restriction as to
disclosure or use prior to its disclosure hereunder.
(c) which is required as part of any court order or government
regulation (provided that the Disclosing Party has been given sufficient written
notice of such order or regulation to contest it); or,
(d) which is developed by Recipient independent of any
Confidential Information of Disclosing Party and which can be proven by written
records.
5. Warranties/Representations
Neither party makes any warranty or representation, whatsoever, as to
the sufficiency or accuracy of any Confidential Information it has disclosed
hereunder or as to the results to be obtained therefrom and assumes no
responsibility arising from any use or misuse thereof.
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6. Equitable Relief
Each party acknowledges that its breach of this Agreement may result in
immediate and irreparable harm to the Disclosing Party, for which there will be
no adequate remedy at law, and the Disclosing Party shall be entitled to
equitable relief to compel the Recipient to cease and desist all unauthorized
use and disclosure of the Disclosing Party's Confidential Information. In the
event that either party shall bring any action to enforce or protect any rights,
obligations or duties under this Agreement, then the prevailing party shall be
entitled to recover, in addition to its damages, reasonable attorneys' fees and
costs.
7. No Commitment
Confidential Information provided by one party to the other does not,
and is not intended to represent a commitment by either party to enter into any
business relationship with the Recipient or with any other entity. If the
parties desire to pursue business opportunities, the parties will execute a
separate written agreement to govern such business relationship.
8. Export Regulations
Notwithstanding any other provision of this Agreement, neither party
shall export any technical Confidential Information acquired under this
Agreement or any commodities using such Confidential Information to any country
to which the United States government forbids export, or at the time of export,
requires an export license or approval, without first obtaining such license or
approval.
9. No License
No license, copyright or other interest is granted directly or
indirectly by either party as a result of conveying Confidential Information to
the Recipient, except the limited rights specifically provided herein.
10. Return of Confidential Information
Upon termination of this Agreement, each party shall, upon written
request of the other party, promptly destroy or return to the other party all
Confidential Information received under this Agreement, and will not retain any
copies of Confidential Information, except as otherwise expressly permitted by
the Disclosing Party.
11. Recipient may not assign this Agreement without the prior written
approval of the Disclosing Party. Any purported assignment without such prior
approval shall be null and void.
12. Binding Effect
This Agreement shall benefit and be binding upon the parties to this
Agreement and their respective successors and assigns.
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13. Entire Agreement
This Agreement embodies the entire understanding between the parties
respecting the subject matter of this Agreement and supersedes any and all prior
negotiations, correspondence, understandings and agreements between the parties
respecting the subject matter of this Agreement. This Agreement shall not be
modified except by a writing duly executed on behalf of the party against whom
such modification is sought to be enforced.
14. Governing Law
This Agreement shall be construed, interpreted, and governed by the laws
of the state of ________________________.
IN WITNESS WHEREOF, the parties have hereto set their respective
signatures to the Agreement:
Amkor Electronics, Inc. Customer
By:______________________________ By:________________________
Name:____________________________ Name:______________________
Title:___________________________ Title:_____________________
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SCHEDULE 1
TECHNOLOGY TO BE TRANSFERRED
[ * ]
* Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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